The Tennessee Supreme Court published for comment today three proposed changes to Rule 31, the rule that
established the Alternative Dispute Resolution Commission and governs the alternative dispute resolution proceedings specified in the rule.
Changes would involve amending Tenn. Sup. Ct. R. 31, Section 2(b)'s, definition of "Baccalaureate
degree" and "graduate degree"; in Section 17 increasing from 10 to 15 years the permissible amount of time between the receipt of mediation training and the date of a
person's application to be listed as a Rule 31 mediator; and in
Section 17(h) and adding a Section(i) to
provide that court clerks and part-time judicial officers may, in certain circumstances, apply to be
listed as Rule 31 mediators.
Comments are due March 2, 2009.

TODAY'S OPINIONSClick on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then
open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to
download the original document. If not, you may need to right-click on the URL to get the option to save the file
to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view
and save a plain-text version of the opinion.

In this workers' compensation appeal, we initially made a referral to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Code Annotated section 50-6-225(e)(3). We then granted direct review. The employee filed suit for workers' compensation benefits, claiming that he suffered a work-related injury to his wrist, which caused an aggravation of the underlying dormant arthritic condition in his right wrist. In response, the employer asserted that the employee's arthritis was not
causally related to his employment and argued that the severity of the pre-existing condition was not advanced by his work activities. The trial court awarded benefits, concluding that the employee had sustained a 36% permanent partial impairment to his right extremity and was entitled to future medical treatment and discretionary costs. The employer has appealed, contending that the trial court erred by finding that the employee had sustained an injury that was causally related to his work
activities and by ruling that the statute of limitations had not expired. Because the evidence does not preponderate against the judgment of the trial court, we affirm.

Following surgeries on both of his hands, the employee filed suit seeking workers' compensation benefits on the theory that the repetitive nature of his work in the employer's flooring business exacerbated a pre-existing, but dormant, arthritic condition. The trial court found that the
employee's work duties had worsened his osteoarthritis and awarded 40% permanent partial disability to each hand. The trial court also awarded temporary total disability benefits for the time during which the employee was recuperating from the surgeries and unable to work. The Special Workers' Compensation Appeals Panel reversed the trial court, holding that the employee's condition was neither caused nor aggravated by the work he performed for the employer. Because the evidence does not preponderate against the trial court's finding of causation and the award of benefits, we reverse the decision of the Appeals Panel and affirm the judgment of the trial court.

Wife of patient brought medical malpractice action for the wrongful death of her husband who died at home later in the same day that he was examined in the emergency room. The patient had been examined, diagnosed and discharged by a nurse practitioner without being seen by a physician. The only direct claim against the hospital was whether the hospital was liable because a written policy,
which required that every patient presented to the emergency room be seen by a physician, was not followed by the health care providers in the Emergency Department. The jury returned a verdict exonerating all of the individual health care providers directly or indirectly involved with the care of the plaintiff's husband; however, the jury found that the hospital was 100% at fault for his death. The hospital appealed contending the jury's verdict must be set aside because it was inconsistent and irreconcilable. Because the jury found that none of the health care providers were at fault, the only basis for upholding the jury's verdict against the Hospital is upon the doctrine of corporate liability. Tennessee has not adopted the doctrine of corporate liability; therefore, the verdict, exonerating all
individual health care providers of fault and finding the hospital 100% at fault, constitutes an inconsistent and irreconcilable verdict. We, therefore, reverse and remand the case for a new trial.

This appeal involves the administration of an intestate estate. The respondent was appointed administratrix of her mother's estate. She administered the estate with the help of an attorney. At the time of the decedent's death, the decedent and the respondent owned a joint banking
account with the right of survivorship. The respondent determined that the proceeds in the account passed directly to her upon the decedent's death, and so she did not include it in the decedent's estate. The respondent made a final distribution to the heirs of the estate, and the
estate was closed. Subsequently, the petitioner, one of the decedent's heirs and the respondent's brother, filed a motion to reopen the estate. He alleged that the respondent and her attorney mismanaged the estate and violated his claimed right to a portion of the decedent's joint checking account. The trial court reopened the estate and appointed a successor administrator. After a hearing, the trial court granted the petitioner's claim to some additional distribution, but determined that the petitioner was not entitled to a portion of his mother's joint checking
account. The petitioner now appeals. Because all of the petitioner's claims were not adjudicated by the trial court, we dismiss the appeal for lack of jurisdiction.

Jennifer K. Craig and Matt S. Shepherd, Jackson, Tennessee, for the defendant/appellee, Chester County School District.

Judge: KIRBY

This is a premises liability case against the county. The plaintiff attended a football game at a county high school. She fell on the steps leading to the bleachers in the football stadium and suffered back injuries. She claimed that the step on which she fell was dented prior to her fall,
and that this caused her fall. The plaintiff filed this action against the school district, alleging that it was negligent in failing to correct a dangerous condition or in failing to warn her about the dangerous condition on the school district's property. The school district filed a motion for summary judgment, asserting that there was no genuine issue of material fact regarding the school district's actual or constructive notice of the defective condition. Alternatively, it claimed that the school district was immune from suit under the GTLA. The trial court agreed with the school district and granted summary judgment based on both grounds. The plaintiff now appeals. We reverse and remand, concluding that the plaintiff submitted sufficient evidence to create a genuine issue of material fact on the issue of whether the school district had actual or constructive notice of a dangerous or defective condition, and that the school district is not immune from suit under the GTLA.

http://www.tba2.org/tba_files/TCA/2008/brownp_123008.pdfKINA CRIDER, INDIVIDUALLY AND ON BEHALF OF AND AS NEXT FRIEND OF HER TWO CHILDREN, JAZMYN CRIDER AND PRECIOUS CRIDER; ON BEHALF OF AND AS NEXT FRIEND OF ALL MINORITY CHILDREN ENROLLED IN THE PARIS SPECIAL SCHOOL DISTRICT; AND CYNTHIA BOYSON, INDIVIDUALLY AND ON BEHALF OF AND AS NEXT FRIEND OF HER CHILD, BREA ROBBINS v. THE COUNTY OF HENRY, TENNESSEE

Lee M. Greer, III, Paris, Tennessee, for the appellee, the County of Henry, Tennessee.

Judge: KIRBY

This case addresses the allocation of funds received by a county from the Tennessee Valley Authority. The Tennessee Valley Authority is exempted from state taxation, but makes payments to the county in lieu of taxes. Historically, the county has earmarked these funds for
education and has allocated a portion of them to the special school districts within the county. In 2003, however, the county decided to phase out the allocation of funds to the special school districts. Subsequently, the plaintiffs in this action, parents of children in a special school district
located in the county, sued the county, arguing that the county's decision to stop sending funds to the special school district violated several statutory provisions. The trial court granted summary judgment to the county. The plaintiffs now appeal. We affirm, concluding that the case is
controlled by the decision in Oak Ridge City Schools v. Anderson County, 677 S.(Tenn. Ct. App. 1984), and that the county is entitled to summary judgment.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Joshua Davis Baker, Assistant Attorney General, for the Petitioner/Appellee State of Tennessee, Department of Children's Services

Judge: KIRBY

This appeal involves the termination of parental rights. The children were taken into protective custody after the mother was arrested for striking her three-year-old child in the face and fleeing from police. The children were found to be dependent and neglected and placed in foster care.
After the children were removed from her care, the mother was repeatedly in and out of jail, with the last incarceration for stabbing her boyfriend in the back with a pair of scissors. When she was not in jail, she was largely unemployed and living with either relatives or a boyfriend. DCS filed a petition for termination of the mother's parental rights on the grounds of abandonment by failure to establish a suitable home, abandonment by an incarcerated parent, substantial non- compliance with the permanency plan, and persistent conditions. After a trial, the trial court
terminated the mother's parental rights. The mother appeals, arguing that DCS did not make reasonable efforts at reunification, and that the termination of her parental rights is not in the children's best interest. We affirm, finding that the evidence supports the trial court's holding
that DCS's efforts at reunification were reasonable under the circumstances, and that termination of the mother's parental rights is in the best interest of the children.

The trial court terminated the parental rights of Tracy S. ("Father") to his daughter, Kaitlin S. (the "Child"), who is currently 15. The trial court found, by clear and convincing evidence, that several grounds for terminating Father's parental rights exists and that termination is in the Child's best interest. Father appeals, challenging the trial court's three basic findings: (1) that DCS made reasonable efforts on his behalf; (2) that clear and convincing evidence of grounds to terminate were established; and (3) that clear and convincing evidence was presented that termination is in the Child's best interest. We modify the trial court's judgment. As modified, the judgment is affirmed.

This is a divorce case terminating a 40 year marriage. Husband/Appellant appeals the trial court's division of marital property, award of alimony in futuro, and award of attorney's fees to Wife/Appellee. In addition, Husband/Appellant contends that the trial court erred in granting Wife/Appellee's motions to re-open proof, and in denying Husband/Appellant's motion for summary judgment. We affirm as modified herein.

The trial court terminated the parental rights of Christina A. ("Mother") to her daughter, Madison A. (the "Child"), who currently is two. The trial court found, by clear and convincing evidence, that grounds had been proven to terminate Mother's parental rights pursuant to T.C.A. section 36-1-113(g)(8). More specifically, the trial court found that Mother was mentally incompetent to care for the Child, and that her mental impairment was likely to remain making it unlikely that she would be able to
care for the Child in the near future. The trial court also found clear and convincing evidence that termination of Mother's parental rights is in the Child's best interest. Mother appeals, claiming that she was denied constitutionally-protected due process rights because the trial court terminated her parental rights when her mental impairment was so significant that she was unable to assist in the defense of her case. We affirm.

http://www.tba2.org/tba_files/TCA/2008/madisona_123008.pdfTOWN OF OAKLAND, A Municipal Corporation of the State of Tennessee v. TOWN OF SOMERVILLE, A Municipal Corporation of the State of Tennessee, in its Own Capacity, and by and Through ROBERT MORRIS in his Official Capacity as Mayor of Somerville, and the Following Members of the Board of Alderman in Their Official Capacity: LAND MIDDLECOFF, JOHN DAVID DOUGLAS, NAN GREEN, ALTON FEATHERS, CARLTON MORRIS and DOUG MASON; WILLIAM RUSSELL "RUSTY" HYNEMAN, Individually and d/b/a HYNEMAN DEVELOPMENT COMPANY; WRH ENTERPRISES, LLC; and WRH PROPERTIES, INC.

Court: TCA

Attorneys:

J. Kevin Walsh, Memphis, Tennessee, for the Defendants/Appellants, Town of Somerville, et al.

Richard J. Myers and Tara M. Ryan, Memphis, Tennessee, for the Plaintiff/Appellee, Town of Oakland.

Judge: KIRBY

This is the second appeal in an annexation case involving two municipalities. The plaintiff smaller municipality passed an ordinance annexing adjoining property. The annexation was to be effective ninety days later. The annexed property also adjoined the defendant larger
municipality. After the passage of the plaintiff’s annexation ordinance, but before its effective date, the defendant municipality passed an ordinance annexing the same property. The plaintiff then filed a declaratory judgment action, asking the court to find that the defendant's annexation was invalid because it attempted to annex property that the plaintiff had already annexed. The
trial court granted the defendant's motion to dismiss and the plaintiff municipality appealed. In the first appeal, we reversed and the case was remanded to the trial court. The defendant then filed a second motion to dismiss, arguing, inter alia, that its greater population gave it annexation priority over the plaintiff under Tennessee Code Annotated section 6-51-110. The trial court denied
the defendant's motion, finding that the plaintiff's annexation of the disputed property took place upon the passage of the ordinance after its final reading, not the effective date of the ordinance. Consequently, it found, the statute giving annexation priority to the larger municipality was not applicable because the defendant larger municipality did not initiate annexation proceedings until after the plaintiff had already annexed the property. The defendant now appeals. We reverse, finding that the effective date of the annexation, not the date of final passage, is the operative date by which a municipality with a larger population must initiate annexation proceedings in
order to take advantage of its statutory priority.

This is a breach of contract case in which the plaintiff, reflected as "Realty Center New Homes Division, LLC" ("Realty Center"), a real estate broker, sued Dowlen Construction, LLC ("Dowlen"), a builder and developer, for unpaid commissions on sales of real estate. Realty Center signed the contracts at issue in a name slightly different from the name on its real estate broker's license. The trial court held that Realty Center is entitled to commissions, prejudgment interest, and discretionary costs. Dowlen appeals. We hold, in accord with the general rule, that
the misnomer in the contracts did not render those documents invalid or inoperative where there was evidence that Dowlen knew the identity of the real party and, in this circumstance, Dowlen was estopped to deny the existence of the entity with which it contracted. We further hold that the Tennessee Real Estate Broker License Act of 1973, Tenn. Code Ann. section 62-13-101 et seq. ("the Act") does not expressly require a real estate broker to sign contracts in its licensed name, and we decline Dowlen's invitation to construe the Act to find this requirement. We affirm the
trial court's judgment.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The defendant, Britt Alan Ferguson, was convicted by an Obion County jury of facilitation of the initiation of a process intended to result in the manufacture of methamphetamine, a Class C felony; two counts of promotion of the manufacture of methamphetamine, a Class D felony; unlawful drug paraphernalia use and activities, a Class A misdemeanor; and two counts of possession of a controlled substance, a Class E felony;1 and was sentenced by the trial court as a multiple offender to an effective sentence of six years in the Department of Correction.
Following the denial of his untimely motion for new trial, he filed an untimely notice of appeal to this court, challenging the sufficiency of the evidence in support of his methamphetamine and drug paraphernalia convictions and arguing that the trial court erred in denying his motion to
suppress evidence. The State responded with a motion to dismiss on the basis that both the motion for new trial and notice of appeal were untimely. This court granted the motion in part, ruling that the defendant had waived the suppression issue by his untimely motion for new trial
but that we would waive the untimely notice of appeal in order to consider the sufficiency of the convicting evidence. Following our review, we conclude that the evidence is sufficient to sustain the convictions. Accordingly, we affirm the judgments of the trial court.

A Davidson County jury convicted the Defendant of two counts of rape of a child, two counts of aggravated sexual battery, and one count of assault. The trial court ordered him to serve an effective sentence of seventy-four years. On appeal, the Defendant claims the trial court erred when it: (1) permitted the State to question the victim about the Defendant's prior bad acts; (2) did not dismiss Count 1 of the indictment pursuant to the cancellation rule; (3) instructed the jury that "recklessness" was sufficient as a mens rea for rape of a child; (4) determined that the evidence supported the verdicts; (5) enhanced the Defendant's sentence and ordered him to serve consecutive sentences. After a thorough review of the record and the applicable law, we affirm the trial court's judgments.

The appellant, Amber Lee Stidham, was found guilty by a jury in the Putnam County Criminal Court of driving under the influence, second offense. The trial court imposed a sentence of eleven months and twenty-nine days with fifty-five days to be served in confinement. On appeal, the
appellant argues that the trial court erred in denying her motion to suppress her statement to police. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

The year-end CLE compliance deadline is tomorrow, but don't sweat it. You can view videos of this year's best CLE programs on Dec. 31 from 7 a.m. to 6:45 p.m. at the Tennessee Bar Center, 221 Fourth Avenue North in Nashville. Moderators will be present, so this will be considered live programming. The TBA also has more than 150 hours of interactive video and interactive text courses available online 24/7.

On New Year's Day, some laws governing juries, jurors and judicial commissions will change in Tennessee.
Professionals, including lawyers, who were once automatically exempt from jury duty or required to perform only limited service, will no longer be exempt. The law does make exceptions for hardship cases. "It puts us all in the same jury selection pool," said David Haines, general counsel for the Administrative Office of the Courts.

In a legal opinion released Monday, the attorney general says that the president may assert executive privilege to withhold from Congress records of an FBI interview with Vice President Dick Cheney regarding the leak of CIA agent Valerie Plame's identity. Attorney General Michael Mukasey warned that, were the records turned over, White House officials would be less likely to cooperate in future investigations out of fear that their words would become public, forcing the department to rely on grand jury subpoenas instead.

Read ABAJournal.com's top 10 legal stories from 2008. Culled from more than 5,000 stories in its daily news feed, these are the stories that attracted the largest number of readers. The stories dealt with the recession and its effect on law firms, lawyers in trouble, attorneys escaping the profession, and the seemingly boundless appetite of lawyers to rank the schools from which they graduated.

Two weeks from today, Tennessee legislators will convene to open the 106th General Assembly of the state legislature.
On Jan. 12, Republican legislators will meet in Nashville and be presented with three recommendations for the posts of treasurer and secretary of state.
On Jan. 13, the entire legislature will convene, and Jason Mumpower, assuming his entire caucus honors their pledge to vote for him, will take the reins of the Tennessee House of Representatives. Republicans hold a one-seat majority over Democrats in the state house.
Later in that week, a joint session of both houses of the legislature will be called to order to elect the constitutional officers for the state.

TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.